In this
diversity case, Brendan Kelly sought a declaratory judgment
against Liberty Mutual Insurance Corporation, on his claim
that Liberty was bound to provide uninsured (or underinsured)
motorist coverage for his benefit. See N.H. RSA
259:117. The insurance contract in question was an umbrella
policy issued to Plum Creek Timber Company, Kelly's
employer and the named insured. The District Court granted
summary judgment for Liberty Mutual. We affirm.

The
policy was issued in New Hampshire, whose law controls. Thus
the insurer bears the burden of proof, N.H. RSA 491:22-a, and
policy language is to be construed as a reasonable person
would understand it upon more than a casual reading of the
policy as a whole, Russellv.NGM Ins.
Co., 176 A.3d 196, 200 (N.H. 2017).

Liberty's
policy was one of two issued to Plum Creek that provided
benefits to its employees as additional insureds when acting
within the scope of employment, as Liberty recognizes that
Kelly was doing when injured in a two-party highway collision
while driving a Plum Creek truck. Terms of the umbrella
policy, like those of the underlying basic policy, were
regulated by RSA 264:15, which included the following mandate
relevant here:

"[U]mbrella or excess policies . . . shall also provide
uninsured motorist coverage equal to the limits of liability
purchased, unless the named insured rejects such coverage in
writing. Rejection of such coverage by a named insured shall
constitute a rejection of coverage by all insureds . . .
."

There
is no dispute that Plum Creek, the named insured, did reject
uninsured motorist coverage and did so in writing. The
writing itself, however, was not incorporated into the
policy. It was not attached to the other policy papers, nor
was it mentioned in the text of the policy or in any
incorporated attachment. It is this absence from the policy
materials of an express mention of the rejection that is the
point on which Kelly's coverage claim turns: Kelly claims
that the want of an explicit reference to Plum Creek's
written rejection renders the rejection inoperative against
an additional insured like Kelly, with the consequence that
RSA 264:15 requires provision of uninsured motorist coverage
under the statute's general rule.

The
apparently fatal flaw undermining this position is the
absence from RSA 264:15 of any requirement that the policy
materials explicitly speak of the rejection of uninsured
motorist coverage. Rather, it is the requirement that the
rejection be "in writing" that ostensibly regulates
the contractual relationship between the insurer and the
named insured and, derivatively, an additional insured. Thus,
the apparent statutory objective is protection against an act
of rejection that is not well considered and a failure of the
insurer to provide the coverage that the named insured has
reason to expect. See Angela Spradling, Hearing
on SB 38 Before the S. Comm. on Commerce, Labor, and Consumer
Protection (Comm. Print 2007) (statement of Sen. Lou
D'Allesandro).

Because
the statute does not contain an explicit reference
requirement, Kelly is left to argue that his position is
implicit in the statute, on the ground that its object is
also to protect additional insureds who need to know whether
they should procure insurance independently in order to
obtain adequate protection against uninsured motorists. But
even assuming that the statute implicitly protects additional
insureds, the statute does not support Kelly's argument
because the additional insureds are not left in the dark
under this umbrella policy as it is. This is clear from three
policy provisions that a reasonable and attentive reader
would find:

1. "This policy contains all the agreements between you
and us concerning the insurance afforded. This policy's
terms can be amended or waived only by endorsement issued by
us and made a part of this policy." Umbrella Policy
§ IV.15.

2. "We will pay those sums . . . that the insured
becomes legally obligated to pay as damages because of: (1)
'Bodily injury'; (2) 'Property damage'; or
(3) 'Personal and advertising injury'; to which this
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.